FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

ARYN NAKAOKA and DARCIE NAKAOKA, 

Plaintiffs-Appellants,

v.

EUGENE SHIZURU and CAROLE SHIZURU; DANIEL T.M.

CHOY; individually and dba CORINTHIANS REALTY;

LYNIEL CHOY, individually and dba RAINBOW REALTY

INTERNATIONAL, Defendants-Appellees

and

JOHN DOES 1-10, JANE DOES 1-10, DOE LIMITED 

LIABILITY COMPANIES 1-10; DOES LIMITED LIABILITY

CORPORATIONS 1-10; DOE GOVERNMENTAL ENTITIES 1-10; 

AND DOE OTHER ENTITIES 1-10, Defendants

NO. CAAP-20-0000320

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 17-1-0160-01)

SEPTEMBER 1, 2022

GINOZA, C.J., AND LEONARD AND WADSWORTH, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

This appeal stems from a dispute involving the sale of

residential real property, in which Plaintiffs-Appellants Aryn

Nakaoka and Darcie Nakaoka (the Nakaokas), as buyers, alleged

that Defendants-Appellees Eugene Shizuru and Carole Shizuru (the

Shizurus), as sellers, failed to disclose the presence of

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000320

01-SEP-2022

11:50 AM

Dkt. 96 OP
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asbestos on the property. Defendant-Appellee Daniel T.M. Choy,

individually and dba Corinthians Realty (Daniel), was the

Shizurus' real estate agent, and Defendant-Appellee Lyniel Choy,

individually and dba Rainbow Realty International (Lyniel),

assisted Daniel with the transaction. The Nakaokas alleged that

Daniel and Lyniel breached legal duties owed to the Nakaokas

related to the non-disclosure of asbestos. 

The Nakaokas appeal from the April 8, 2020 Final

Judgment (Judgment), entered in favor of the Shizurus, Daniel,

and Lyniel (collectively, Appellees) by the Circuit Court of the

First Circuit (Circuit Court). The Nakaokas also challenge the

following post-judgment orders (collectively, the Orders Awarding

Fees and Costs), entered on July 17, 2020, by the Circuit Court: 

(1) "Order Granting [the Shizurus'] Motion for an Award of

Attorneys' Fees, Filed April 22, 2020"; (2) "Order Granting [the

Shizurus'] Motion for Costs, Filed May 1, 2020"; (3) "Order

Granting [Lyniel's] Motion for an Award of Attorneys' Fees and

Costs, Filed April 22, 2020"; and (4) "Amended Order Granting

[Daniel's] Motion for an Award of Attorney's Fees and Costs,

Filed April 22, 2020."1/

The Judgment and the Orders Awarding Fees and Costs

followed a series of orders granting Appellees' various motions

for summary judgment and partial summary judgment, including the

Circuit Court's December 13, 2019 "Order Granting [the Shizurus']

Motion for Partial Summary Judgment Respecting [the Nakaokas'

Hawaii Revised Statutes (HRS)] Chapter 508D Claims" (Order Re

508D Claims).2/ In the Order Re 508D Claims, the Circuit Court

ruled that the Nakaokas' failure to comply with the mediation

provision in the parties' purchase contract deprived the court of

"jurisdiction" over the Nakaokas' lawsuit. 

1/ The Honorable John M. Tonaki entered the Judgment and the Orders

Awarding Fees and Costs.

2/ The Honorable James S. Kawashima presided over the October 2, 2019

hearing on "[the Shizurus'] Motion for Partial Summary Judgment Respecting

[the Nakaokas' HRS] Chapter 508D Claims" (508D Motion), filed on July 8, 2019. 

Judge Tonaki entered the Order Re 508D Claims. 

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The Nakaokas raise a single point of error on appeal: 

Having concluded that it lacked subject matter

jurisdiction via its December 13, 2019 Order [Re 508D

Claims], [the Circuit C]ourt committed reversible error when

it thereafter entered Judgment in favor of Appellees,

entertained Appellees' motions for awards of attorneys' fees

and costs, and then ultimately awarded all Appellees their

full fee and cost requests.

(Record citations omitted.) 

As a threshold matter, we hold that the Circuit Court

lacked jurisdiction to enter the July 17, 2020 order granting the

Shizurus' motion for costs. The motion for costs was filed after

the notice of appeal was filed, and did not qualify as a motion

extending the time for appeal ("tolling motion") under Hawai#i

Rules of Appellate Procedure (HRAP) Rule 4(a)(3), as further

explained below. The filing of the notice of appeal thus 

divested the Circuit Court of jurisdiction to decide the

Shizurus' motion for costs.

With respect to the Nakaoka's point of error, we hold

that the mediation provision in the purchase contract, read in

conjunction with HRS 508D-18, functioned as a condition precedent

to filing suit, but the failure to mediate in these circumstances

did not divest the Circuit Court of subject matter jurisdiction. 

Accordingly, we affirm the Judgment, as well as the subsequent

orders awarding attorneys' fees and costs to Daniel and Lyniel,

and attorneys' fees to the Shizurus.

I. Background

On April 21, 2016, the Nakaokas, as buyers, and the

Shizurus, as sellers, entered into a purchase contract. The

purchase contract stated in part:

O-4 Mediation. If any dispute or claim arises out of this

Purchase Contract prior to or after closing between

Buyer and Seller, or between Buyer and/or Seller and a

Brokerage Firm and all its licensees assisting in this

transaction, and the parties to such dispute or claim

are unable to resolve the dispute, Buyer and Seller

agree in good faith to attempt to settle such dispute

or claim by non-binding mediation. . . .

It is undisputed that the parties did not attempt to settle their

dispute by non-binding mediation prior to the filing of the

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underlying complaint on November 9, 2016.

The Nakaokas' Second Amended Complaint (SAC), filed on

February 21, 2018, asserted eight claims for relief:

• Count I - Breach of Written Contract for Sale

of Real Property, alleged against the

Shizurus.

• Count II - Statutory Violations, alleged

against Daniel and Lyniel. 

• Count III - Breach of Duties as Relator,

alleged against Daniel and Lyniel. 

• Count IV - Fraudulent Concealment, alleged

against the Shizurus, Daniel, and Lyniel. 

• Count V - Intentional Infliction of Emotional

Distress, alleged against the Shizurus,

Daniel, and Lyniel. 

• Count VI - Punitive Damages, alleged against

the Shizurus, Daniel, and Lyniel. 

• Count VII - Unfair or Deceptive Acts or

Practices, alleged against Daniel and Lyniel.

• Count VIII - Negligent Misrepresentation,

alleged against the Shizurus, Daniel, and

Lyniel.

In July 2019, the Shizurus, Daniel and Lyniel each

filed motions for summary judgment or partial summary judgment. 

On August 28, 2019, the Circuit Court entered an order

granting summary judgment in favor of Lyniel on SAC Counts II,

III, IV, V, and VIII, and denying summary judgment on SAC Count

VII without prejudice. 

On September 4, 2019, the Circuit Court orally granted

Daniel's motion for summary judgment on SAC Counts II, III, and

IV, and denied the motion on SAC Counts V, VII, and VIII. These

rulings were eventually formalized in the Circuit Court's

March 18, 2020 "Order Granting in Part and Denying in Part

[Daniel's] Motion for Summary Judgment."

On December 13, 2019, the Circuit Court entered four

orders granting the Shizurus' respective motions for partial

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summary judgment on SAC Counts I, IV, V, VI, and VIII.3/ On the

same day, the Circuit Court entered the Order Re 508D Claims,

which granted the Shizurus' 508D Motion.4/

The Order Re 508D Claims included the following

relevant finding of fact, which is unchallenged on appeal and

thus binding on the parties and this court, see State v.

Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019):

3. Section 0, Paragraph 4 of the purchase contract

specifically states that if a disputed claim

arises out of the purchase contract and the

parties are unable to resolve the dispute, then

the parties agree in good faith to attempt to

settle such dispute by non-binding mediation.

The Order Re 508D Claims also includes the following relevant

conclusions of law: 

2. . . . Section 0, Paragraph 4 of the purchase contract

does require mediation since the buyer and seller

agree to attempt to do so, and the term is a binding

contractual term.

3. Absent evidence that actual mediation has been

attempted, then the buyer is in breach by filing suit

herein and, by breaching the contract giving rise to

this suit, thereby deprives this Court of

jurisdiction. Within the four corners of the purchase

contract, an attempt at mediation is a requirement to

which both sides agreed. Absent that mediation, the

terms of the contract itself prevent the buyer from

filing suit herein.

4. As this motion relates to jurisdiction, it applies to

all parties.

(Emphases added.)

On April 8, 2020, the Circuit Court entered the 

Judgment, which stated in part that "[t]he [Order Re 508D Claims]

disposes of all claims against all [Appellees]." Judgment was

entered in favor of all Appellees and against the Nakaokas "on

all claims . . . asserted in this action." 

3/ Although these four orders granted the Shizurus' respective

motions for "partial summary judgment," the orders resolved all claims against

the Shizurus in their favor. 

4/ We note that the Nakaokas did not assert a separate claim under

HRS Chapter 580D in the SAC. Nevertheless, the Nakaokas conceded below that

"it is a fair reading of the [SAC] to conclude that its key allegation is that

the Shizuru Defendants breached the written property sales contract governed

by [HRS] Chapter 508D."

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On April 21, 2020, the Shizurus filed a bill of costs,

seeking taxation by the Clerk of the Court of costs incurred in

the case. On April 22, 2020, Daniel and Lyniel each filed a

motion for an award of attorneys' fees and costs, and the

Shizurus filed a motion for an award of attorneys' fees. On

April 27, 2020, the Clerk of the Court denied the Shizurus'

proposed taxation of costs, apparently because their bill of

costs did not state that 48 hours notice had been given to all

parties. On May 1, 2020, the Shizurus filed a motion for costs

as set out in their original bill of costs, pursuant to Hawai#i

Rules of Civil Procedure (HRCP) Rule 54(d)(1). 

Meanwhile, on April 28, 2020, the Nakaokas timely filed

a notice of appeal from the Judgment. 

The Nakaokas also opposed Appellees' motions for fees

and costs, arguing that the Circuit Court had concluded that it

lacked subject matter jurisdiction over the entire case, and that

all prior orders were therefore void, leaving no prevailing

parties for the purpose of awarding fees and costs. The Nakaokas

made the same argument during the July 15, 2020 hearing on the

motions. At that time, the Circuit Court granted all Appellees'

motions for fees and costs, stating in part:

The court ruled that it lacked jurisdiction over Chapter

508D claims pursuant to the requirement in HRS Section 508D18 which required the parties to submit to mediation prior

to filing of a suit when the purchase contract provided for

alternative dispute resolution.

The court did not rule in its order that it lacked subject

matter jurisdiction over this matter as argued by the

[Nakaokas]. The [Nakaokas] raise[] the argument that

because the court held pursuant to the statute that it

lacked jurisdiction to adjudicate 508D claims that this

court does not have the power to award attorneys' fees and

costs.

However, the court believes that it does retain subject

matter jurisdiction and the jurisdiction to award fees and

costs if allowed by the agreement and by statute.

On July 17, 2020, the Circuit Court entered the Orders

Awarding Fees and Costs. 

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II. Discussion

A. The Order Granting the Shizurus' Motion for Costs

In their opening brief, the Nakaokas challenge the

Orders Awarding Fees and Costs, including the July 17, 2020 order

granting the Shizurus' motion for costs.

We conclude that the Circuit Court lacked jurisdiction

to enter the order granting the Shizurus' motion for costs. The

May 1, 2020 motion for costs was filed after the April 28, 2020

notice of appeal was filed. Under HRAP Rule 4(a)(3),5/ only the

filing of a timely motion for costs, where court rules specify

the time by which the motion must be filed: (1) tolls the time

for filing a notice of appeal, and (2) extends the time the trial

court retains jurisdiction to resolve the motion. See Woodruff

v. Hawai#i Pacific Health, No. 29447, 2014 WL 128607, at *18

(Haw. App. Jan. 14, 2014) (construing predecessor version of HRAP

Rule 4(a)(3)). Here, the Shizurus' motion for costs was filed

under HRCP Rule 54(d)(1), which imposes a five-day time limit on

seeking review of the clerk's action on a request for taxation of

costs, but does not impose any time limit for the initial request

for taxation of costs by the clerk. Id. Because HRCP Rule

54(d)(1) does not specify the time by which a motion for costs

must be filed as measured from the entry of judgment, a postjudgment motion for costs under HRCP Rule 54(d)(1) does not

qualify as a tolling motion under HRAP Rule 4(a)(3). Id. Thus,

the Circuit Court was divested of jurisdiction to decide the

Shizurus' motion for costs upon filing of the Nakaokas' notice of

appeal. See id. (citing Cox v. Cox, 125 Hawai#i 19, 28-29 &

n.14, 250 P.3d 775, 784-85 & n.14 (2011), and Hoddick, Reinwald,

O'Connor & Marrack v. Lotsof, 6 Haw. App. 296, 300, 719 P.2d

5/ HRAP Rule 4(a)(3) provides in relevant part:

(3) TIME TO APPEAL AFFECTED BY POST–JUDGMENT MOTIONS. 

If any party files a timely motion for judgment as a matter

of law, to amend findings or make additional findings, for a

new trial, to reconsider, alter or amend the judgment or

order, or for attorney's fees or costs, and court or agency

rules specify the time by which the motion shall be filed,

then the time for filing the notice of appeal is extended

until 30 days after entry of an order disposing of the

motion. . . . 

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1107, 1111 (1986)).

In light of our conclusion, the Nakaokas' purported

appeal from the order granting the Shizurus' motion for costs is

dismissed. The Shizurus' motion for costs remains pending before

the Circuit Court and may be resolved after this appeal is

concluded and jurisdiction is returned to the Circuit Court. 

B. The Circuit Court's Subject Matter Jurisdiction

The Nakaokas assert that they "are not challenging the

December 13, 2019 [Order Re 508D Claims]," and they "accept that

the trial court concluded that it lacked subject matter

jurisdiction." Based on the premise that the Circuit Court

lacked subject matter jurisdiction, the Nakaokas argue that "all

prior orders of any form were void ab initio." They further

argue: "Since the trial court held it lacked jurisdiction, a

point neither contested by [the Nakaokas] or Appellees, and thus

not subject to review, there are no prevailing parties, and no

one is entitled to fees and costs." 

In response, Appellees point out that the Circuit Court

found it lacked "jurisdiction," not "subject matter

jurisdiction," based on the Nakaokas' failure to comply with the

mediation provision of the purchase contract. Appellees contend

that the Order Re 508D claims was premised on the failure to

satisfy a condition precedent to litigation, rather than a lack

of subject matter jurisdiction. 

HRS § 508D-18 (2018) provides:

If the real estate purchase contract provides for

alternative dispute resolution, then prior to filing an

action in any court to enforce this chapter, a seller or

buyer shall first submit the claim to alternative dispute

resolution as required in the real estate purchase contract.

Here, the parties do not dispute that the purchase 

contract required non-binding mediation prior to filing suit and

that such mediation did not occur. We must therefore decide

whether the failure to engage in mediation prior to filing suit

deprived the Circuit Court of subject matter jurisdiction, as the

Nakaokas contend.

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Addressing the subject matter jurisdiction of the

circuit courts, the Hawai#i Supreme Court has stated:

The circuit courts are courts of general jurisdiction. 

State v. Villados, 55 Haw. 394, 397, 520 P.2d 427, 430

(1974). We defined jurisdiction as "the power and authority

on the part of the court to hear and judicially determine

and dispose of the cause pending before it." Id. at 396,

520 P.2d at 430. HRS § 603-21.5 gives the circuit court

subject matter jurisdiction over civil actions and

proceedings. Thus, the circuit court has jurisdiction over

all civil causes of action unless precluded by the State

Constitution or by statute.

Sherman v. Sawyer, 63 Haw. 55, 57–58, 621 P.2d 346, 348–49 (1980)

(footnote omitted). 

The supreme court has also observed that "[i]n the

sound interest of finality, the concept of void judgment must be

narrowly restricted." In re Genesys Data Techs., Inc., 95

Hawai#i 33, 38, 18 P.3d 895, 900 (2001) (quoting Dillingham Inv.

Corp. v. Kunio Yokoyama Tr., 8 Haw. App. 226, 233, 797 P.2d 1316,

1320 (1990), abrogated on other grounds by Chen v. Mah, 146

Hawai#i 157, 457 P.3d 796 (2020)); see also Bank of Hawaii v.

Shinn, 120 Hawai#i 1, 14, 200 P.3d 370, 383 (2008) ("[I]n the

sound interest of finality, the concept of void judgment must be

narrowly restricted . . . if a court has the general power to

adjudicate the issues in the class of suits to which the case

belongs then its interim orders and final judgments, whether

right or wrong, are not subject to collateral attack, so far as

jurisdiction over the subject matter is concerned[.]" (quoting

Dillingham Inv. Corp., 8 Haw. App. at 233-34, 797 P.2d at 1320)).

The Nakaokas do not cite any Hawai#i authority

supporting their argument that the parties' failure to engage in

prelitigation mediation deprived the Circuit Court of subject

matter jurisdiction, and we have found none. We note, however,

that other jurisdictions have addressed whether a failure to

mediate as required by contract or statute strips a court of

subject matter jurisdiction. Absent clear statutory language

that mediation is a jurisdictional prerequisite, a number of

these courts have viewed mediation requirements merely as

conditions precedent to filing suit. See, e.g., MB Am., Inc. v.

Alaska Pac. Leasing Co., 367 P.3d 1286, 1288 (Nev. 2016) (holding

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"that the mediation provision in the parties' contract is an

enforceable condition precedent to litigation" and concluding

that a grant of summary judgment was proper where the plaintiff

initiated litigation "without complying with the prelitigation

mediation provision in the Agreement[.]"); Windham Land Tr. v.

Jeffords, 967 A.2d 690, 697 (Me. 2009) (concluding that "the

parties' failure to engage in prelitigation mediation did not

strip the Superior Court of subject matter jurisdiction," and

explaining that "[t]he court's jurisdiction over the subject

matter of the dispute in this case [was] not contingent on

whether the parties engaged in pre-litigation mediation, which is

merely a condition precedent to filing suit"); Stone & Webster,

Inc. v. Georgia Power Co., 968 F. Supp. 2d 1, 6 (D.D.C. 2013)

("Given that other courts in this district have implicitly

concluded that failure to abide by a mediation clause that

functions as a condition precedent does not deprive a court of

subject matter jurisdiction, this Court is reluctant to interpret

this privately agreed-upon condition as a jurisdictional bar."

(citation omitted)); cf. Klinge v. Bentien, 725 N.W.2d 13, 18

(Iowa 2006) (concluding that the small claims court lacked

subject matter jurisdiction over a farm dispute where a state

statute explicitly stated "that filing a mediation request and

obtaining a mediation release 'are jurisdictional prerequisites

to a person filing a civil action . . . to resolve a dispute

subject to this chapter[.]'" (quoting Iowa Code § 654B.3(1)(b))).

Here, given that HRS § 603-21.5 grants the circuit

courts subject matter jurisdiction over civil actions and

proceedings, and HRS § 508D-18 does not state that mediation is a

jurisdictional prerequisite to filing suit, we conclude that the

failure to mediate in these circumstances did not divest the

Circuit Court of subject matter jurisdiction. Instead, the

mediation provision in the purchase contract, read in conjunction

with HRS § 508D-18, functioned as a condition precedent to filing

suit. See, e.g., MB Am., Inc., 367 P.3d at 1288; Windham Land

Tr., 967 A.2d at 697; Stone & Webster, Inc., 968 F. Supp. 2d at

6. Because the Circuit Court had subject matter jurisdiction

over the Nakaokas' claims, the Judgment and subsequent orders

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awarding attorneys' fees and costs to Daniel and Lyniel, and

attorneys' fees to the Shizurus, are not void for lack of such

jurisdiction.

The Nakaokas assert no other argument as a basis for

vacating the Judgment and subsequent orders awarding attorneys'

fees and costs. 

III. Conclusion

For the reasons discussed above, we affirm the

following judgment and orders, entered by the Circuit Court of

the First Circuit:

(1) the April 8, 2020 Final Judgment;

(2) the July 17, 2020 "Order Granting [the Shizurus']

Motion for an Award of Attorneys' Fees, Filed

April 22, 2020"; 

(3) the July 17, 2020 "Order Granting [Lyniel's]

Motion for an Award of Attorneys' Fees and Costs,

Filed April 22, 2020"; and 

(4) the July 17, 2020 "Amended Order Granting

[Daniel's] Motion for an Award of Attorney's Fees

and Costs, Filed April 22, 2020."

The purported appeal from the July 17, 2020 "Order Granting [the

Shizurus'] Motion for Costs, Filed May 1, 2020" is dismissed.

On the briefs:

Richard E. Wilson, /s/ Lisa M. Ginoza

for Plaintiffs-Appellants Chief Judge

Robert J. Crudele and /s/ Katherine G. Leonard

Henry F. Beerman Associate Judge

(Crudele & Beerman, LLLC)

for Defendants-Appellees /s/ Clyde J. Wadsworth

Eugene and Carole Shizuru Associate Judge

Enver W. Painter, Jr.

for Defendant-Appellee

Daniel T.M. Choy, individually

and dba Corinthians Realty

Philip W. Miyoshi

(Miyoshi & Hironaka LLC)

for Defendant-Appellee

Lyniel Choy, individually and

dba Rainbow Realty International

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